Sacking for Melbourne Cup booze 'theft' unfair

A manager of a computer consulting company suffered "a manifest injustice" when he was fired for allegedly stealing three bottles of spirits after a Melbourne Cup day function, the Fair Work Commission has ruled.

Network and engineering manager, Jason Thomas, was sacked from Sydney business Metwide Communications for serious misconduct when he allegedly took home bottles of Jack Daniels, Jim Beam and Johnny Walker Red left behind in a "putrid" esky on the company's premises.

Mr Thomas had noticed the unopened spirits after helping a colleague to dump the contents of the esky, which had been filled with mostly empty bottles from a Melbourne Cup event the year before.

A manager argued he took home bottles of Jack Daniels, Jim Beam and Johnny Walker Red as they had been "abandoned". Michele Mossop

When Metwide suspended him and later fired him for stealing company property, he countered that he only took the goods after they were abandoned.

He argued the company had been "itching to sack" him and had exploited the alleged theft as a "wonderful opportunity" because he would not sign a new contract that substantially cut his conditions.

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Fair Work deputy president Peter Sams found Metwide was "making mountains out of molehills" and its theft case was caught in a "mire of false allegations, wild exaggeration and hyberbole".

"Serious allegations of this kind, amounting to criminal activity, should not be thrown around, like confetti, without any sound basis or proper investigation," he said.

Doubts over police 'complaint'

The company's lawyer told the commission that the business had even notified police about the "theft" yet submitted no evidence that it had done so.

The deputy president said he doubted police ever received the complaint or would have bothered investigating it even if they had.

"In my view, the circumstances here could in no way be considered to be 'theft' in a strict legal sense, let alone as a matter of plain common-sense," he said.

"If this was a matter of such grand larcenic proportions, it beggars belief that the [company] did not demand recompense, or at the very least, return or replacement of the liquor."

Rather he suspected it was possible, "if not likely", that the real reason for firing Mr Thomas was because he had refused to sign his new contract just two months before.

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"After all, why would there be any reference in the 'show cause' letter to his refusal to sign a new contract, if it did not figure at all in [the general manager's] thinking?"

He found the show cause letter, which also demanded Mr Thomas return all company property and equipment, made it obvious that Metwide had already decided to sack him.

"I have never seen such a grossly inaccurate and predetermined letter, masquerading as a 'show cause' letter, when in truth the decision had been made."

He held that it was reasonable for Mr Thomas to believe the unopened bottles had been discarded given that the esky had "seemingly sat unattended as a trash can" for three months and that there was no valid reason for dismissal.

He ordered Metwide reinstate Mr Thomas, who was paid $135,000 a year, and pay him lost wages from when he was fired back in February.